May 18, 2010
Guest Contribution: Morrissey on Advance Directives in Mental Health Care
We are pleased to welcome this guest contribution from Fiona Morrissey, a PhD candidate in NUI Galway and lecturer and librarian in Athlone IT. You can find out more about Fiona on our guests page.
Advance directives are statements by competent adults setting out their wishes in advance of incapacity. The inclusion of advance directives in psychiatric settings is part of an international impetus towards the entrenchment of human rights for persons with mental illness (see Weller, “Advance Directives and the Translation of Human Rights Principles in Mental Health Laws-Towards a Contextual Analysis”). Advance mental health directives allow competent individuals to specify their treatment preferences in advance of an incapacitating mental health crisis when they are unable to make decisions for themselves. The instrument is increasingly recognised as a valuable mechanism by which the rights of persons with mental illness can be respected during periods of incapacity. The main theoretical rationale behind advance directives is the enhancement of patient autonomy but the measure also has the potential to ameliorate some of the negative consequences of mental illness. Advance directives were originally developed to allow people to make decisions regarding end of life care (O’Reilly, R., “The Capacity to Execute an Advance Directive for Psychiatric Treatment”). The concept of the ‘living will’ was then extended to the mental health context enabling people to express their future treatment choices prior to incapacity. Historically, persons with mental illness have not been afforded the opportunity to become involved in their treatment decisions (Deegan, “The Independent Living Movement and People with Psychiatric Disabilities: Taking back Control over our own Lives”). Many patients still have little influence over their destiny during a mental health crisis and are excluded from participation in many life decisions once deemed incapable. Advance directives offer a novel solution to this dilemma by enabling treatment choices to be asserted during periods of decision making capacity. The measure serves to restore the voice of the individual at a time when it is most often disregarded.
Forms of Advance Directives
Advance directives can take varying forms, enabling different decisions to be made. In order to be valid, an advance directive must be executed by a capable person and clearly express their wishes (Srebnik and LaFond, “Advance Directives for Mental Health Treatment”). The measure usually takes effect with the onset of an incapacitating episode of mental illness. Advance mental health directives usually include personal treatment choices but can also include information regarding other life management issues. Preferences can be expressed through instructional directives which provide directions regarding treatment or proxy directives where the authority to make decisions is given to an appointed person in the event of incapacity. A directive can be either positive or negative in that it includes advance consent or refusal of treatment. Some directives are legally binding while others are accorded due respect and consideration. A Ulysses directive provides for anticipatory consent through a self binding contract which can be used to override refusals in advance of future episodes of mental illness (Dresser, “Ulysses and the Psychiatrists: A Legal and Policy Analysis of the Voluntary Commitment Contract” (1982) 16 (3) Harvard Civil Rights-Civil Liberties Law Review 777).
Benefits
Advance directives offer a myriad of benefits in the mental health context including the potential to motivate adherence to treatment plans, improve continuity of care, mobilisation of resources and enhanced management of crises (Swanson J., Tepper M., Backlar P., et al., “Psychiatric Advance Directives: An Alternative to Coercive Treatment”). Winick lists a number of therapeutic benefits including the facilitation of preventative care, patient empowerment, the prevention of future incapacity, the reduction of stress and anxiety, enhanced self esteem and decision making capacity, improved negotiation with clinicians and increased compliance (“Advance Directive Instruments for those with Mental Illness”, (1996) 51 University of Miami Law Review 57). Some commentators believe that the major benefit of advance directives is that they force psychiatrists to listen to their patients (Brooks, “The Right to Refuse Antipsychotic Medication: Law and Policy”, (1987) 39 Rutgers Law Review 339). Advance directives provide a way of harnessing patient expertise and improving decision making quality in the mental health context. The mechanism is considered to be at the forefront of contemporary measures to reduce involuntary treatment. Winick argues that advance directives have therapeutic value making patients more responsive to treatment and self compliant thereby reducing the need for involuntary detention and treatment (Winick, “The Right to Refuse Mental Health Treatment: A Therapeutic Jurisprudence Analysis”, (1994) 17 International Journal of Law and Psychiatry 99). Non-voluntary admissions accounted for 11 per cent of all admissions to Irish psychiatric hospitals in 2008 (National Psychiatric In-patient Reporting System (NPIRS) – National Bulletin Ireland 2008). The mechanism provides an opportunity to reduce involuntary admissions and redefine the coercive model of treatment to one of collaboration and respect. Advance directives have also been shown to decrease costs and reduce hospital readmission rates in mental health (Henderson et al, “Effect of Joint Crisis Plans on Use of Compulsory Treatment in Psychiatry: Single Blind Randomised Controlled Trial”). A recent report found that mental health problems cost the Irish economy over €3 billion per year. At a time when the Irish health care system is under resourced, advance directives can have significant economic benefits in mental health care.
Ireland
The legal status of advance directives in general and mental health care is uncertain in Ireland. While there is no law prohibiting a person from expressing their treatment wishes, the absence of a legal framework means these may or may not be enforced. It is suggested that the Irish Courts would uphold the validity of an advance directive from statements made in Re a Ward of Court No. 2 [1996] 2 I.R. 79 (Campbell, “The Case for Living Wills in Ireland”, (2006) 12 (1) Medico- Legal Journal of Ireland 2 at 6; Madden, D., Medicine, Ethics and the Law (Dublin: Tottel Publishing, 2002), 509). However, the law remains ambiguous in relation to advance directives in mental health care. The Law Reform Commission proposed a statutory framework for the provision of general ‘advance care directives’ in 2008. Psychiatric advance directives were specifically excluded from its scope due to the complexities involved. A report setting out final recommendations on advance care directives, together with a draft Mental Capacity (Advance Care Directives) Bill intended to implement these recommendations was published by the Commission in September 2009. The report recommends that the proposed legislative framework should not apply to advance care directives in mental health care. The Commission recommends a separate review for this area which would include an assessment of the impact of the Mental Health Act, 2001 and the work of the Mental Health Commission. While, the proposed Scheme of the Mental Capacity Bill 2008 proposes to extend the Enduring Power of Attorney to healthcare decisions and supports taking the person’s past and present wishes into account including any written statement, it does not provide a specific framework for advance directives. Exploratory research by Amnesty Ireland shows strong support amongst people with experience of mental illness in favour of advance directives. The national mental health policy framework set out in a Vision for Change explicitly supports the use of advance directives and states that “a person centred approach to the delivery of care will both highlight and moderate these conflicting rights, offering measures such as advance directives that can be put into effect at times when the user may not be well enough to make informed decisions”.
Other Jurisdictions & International Human Rights Instruments
The debate on advance directives in mental health has advanced in other common law countries and resulted in legislative reform in some cases (New Zealand, UK, Scotland, Canada and the US). Many jurisdictions have provided for advance mental health directives through extended common law or legislative provisions. Comparative analysis shows that Ireland lags behind other comparable jurisdictions in providing for advance directives in general or mental health care. While advance directives are not explicitly acknowledged in international instruments relating to mental health, they are widely recognised as vehicles for the principles of participation, non- discrimination, acceptability and accessibility. The mechanism is seen as implicitly promoted in new human rights legislation and policy including the Convention on the Rights of Persons with Disabilities (CRPD). The Council of Europe has built on Recommendation No. R 99 (4) concerning the legal protection of incapable adults to include self determination mechanisms such as advance directives and powers of attorney. The new Recommendation concerning continuing powers of attorney and advance directives for incapacity is designed to encourage further development in this area.
Advance directives offer an unprecedented opportunity to retain the maximum degree of control during the most disabling episodes of mental illness (Gallagher, E., “Advance Directives for Psychiatric Care: A Theoretical and Practical Overview for Legal Professionals” (1998) 4(3) Psychology, Public Policy and Law 746). The mechanism is arguably at the forefront of human rights based approaches to the treatment of mental illness. The potential therapeutic, economic and human rights benefits demand their consideration in the Irish mental health context. The enactment of new capacity legislation, the ratification of the CRPD, the new Council of Europe Recommendations and implementation of the national mental health policy provide an ideal context for the consideration of advance mental health directives in Ireland.
